A single-judge bench of J. Vibhu Bakhru of the Delhi High Court upheld the accused’s conviction in Kailash @ Balli v State. The bench said that to prove an offense punishable u/s 397 IPC, the recovery of the weapon used is not mandatory.
Brief facts of the case
The complainant narrated that at around 5:00 – 6:00 am during his morning walk in a park 400-500 meters from his house, he was approached by a strange boy who was identified as the accused. The boy proceeded to ask him a few questions and demand the complainant’s phone. Upon refusal, the boy tried to snatch the phone away, and the complainant pushed the boy, who then fell to the ground. It is then that the boy pulled out a knife, attacked him, snatched his phone, and ran away.
The complainant followed the boy to the park’s gate, where he saw to police officers and explained to them what happened. The officers went after the accused boy and caught him. A knife and a mobile phone were recovered from him.
The accused was subsequently charged and convicted by the Trial Court under Section 392 and 397 of the IPC and Section 25 of the Arms Act, 1959 and sentenced to 7 years RI and three years SI running concurrently.
The accused-appellant has challenged this ruling.
Arguments
The Counsel for the Appellant focused on certain inconsistencies in the statements of the witnesses, including the complainant, saying that they were material.
She pointed out that in his earlier statement, the complainant had not made any allegations that the accused had demanded the mobile phone. He had merely stated that the accused had enquired as to what the complainant was doing in the park. After this, he had attempted to snatch the mobile phone.
Similarly, there are inconsistencies in the statements of the complainant and the two policemen about how the complainant reached the Police Station and also about how they took the appellant to the Police Station.
Additionally, there are inconsistencies in the statements about the handling of the knife.
Court’s Observations
The Court states that these contentions are unpersuasive, and none of the inconsistencies mentioned are material. These are mere minor inconsistencies arising out of the understanding of the complainant.
He merely deposed that the policemen and the accused went to the police station and did not walk there together. He, too, proceeded to the station, although taking a minor detour to his home, which he had explained was about 400-500 meters away to his home from the park where he was robbed.
“His narration of the events indicates how the offense was committed…..the language of the initial statement made by the complainant and his testimony recorded later is not expected to be identical. However, there must be consistency as to the description of how the offense was committed. In this case, there is no inconsistency in that regard.”
The Court said that it is immaterial how the knife was handled since there is good evidence that the appellant used a knife during the occurrence. As per a catena of the case like Asfaq v State 2004 (3) SCC 166, the recovery of the weapon used is not necessary to establish an offense punishable under Section 397 if it is sufficiently established that it was used.
Also, the High Court cited Kalpnath Rai v State AIR 1998 SC 201 and stated that in a case where the prosecution has established a case beyond a reasonable doubt based on the testimony of the official witness and other evidence, non-joining of public witnesses would not be fatal to the case.
Court’s Order
Based on the reasons mentioned earlier, the High Court of Delhi did not find any reason to interfere with the impugned judgment and upheld the appellant’s conviction and sentencing.
The judgment can be accessed here.
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